YAKUBU SALIFU vs. THE REPUBLIC [2015]DLHC3577

Date	2015-11-16
Suit No.	CASE NO.D15/177/15
Citation No.	[2015]DLHC3577

HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

BEN ABDALLAH BANDA FOR THE APPELLANT.

NO REPRESENTATION FOR THE RESPONDENT.

[2015]DLHC3577
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													<main id="main" class="content" style="min-height: 60rem" >YAKUBU SALIFU<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CASE NO.D15/177/15&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 16TH NOVEMBER, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>BEN ABDALLAH BANDA FOR THE
APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

HER
LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>This
is an appeal against the Judgment of the District Magistrate, Nyinahin, Ashanti
Region. The appellant was arraigned before the Nyinahin Distrcit Court on a
charge of stealing, contrary to section 124(1) of the Crminal Offences Act,
1960, Act 29. <o:p></o:p>On
his maiden appearance before the court, his plea was not taken because the
prosecution indicated to the Magistrate that investigations were ongoing and
did not want any interference with their investigations. Their request was
accepted by the court and the appellant was kept in police custody.<o:p></o:p>&nbsp;Subsequently, his plea was taken and he
pleaded guilty. The trial&nbsp; Magistrate proceeded
to convict and sentence him to 270 days imprisonment&nbsp; with hard labour. It is against this sentence
that the instant appeal has been brought.<o:p></o:p>The
facts which led to the conviction and sentence are as&nbsp; follows: The Appellant is a caretaker to one
Alhaf Issufu, who rents out excavators. On 13/09/2015, a customer rented or
hired an excavator from the Appellant after the two had negotiated and agreed
on GH¢16,000.00. The Appellant collected the money from the hirer, but failed
to account for same to his master. Following a report made to the police, the
appellant was arrested. <o:p></o:p>GROUND OF APPEAL<o:p></o:p>&nbsp;The sentence is too harsh taking the
circumstances of the case into consideration.<o:p></o:p>In
arguing the appeal, Learned Counsel for the Appellant contended that the
Appellant is a first and young offender, aged 41 years; he has a family with
three children and is the sole bread winner of the family. Continuing, Counsel
argued that the incarceration of the Appellant will jeopardize the maintenance
of his family and the future of the children. Concluding, counsel submitted
that the Appellant had already refunded the money at the time of his conviction
and sentence, and prayed the court to spare him the ordeal of custodial
sentence.<o:p></o:p>The&nbsp; record of proceedings,&nbsp; which also contained the petition and ground
of appeal, were&nbsp; served on the Chief
State Attorney, Kumasi on 20/10/2015&nbsp;
together with a hearing notice. However, at the time of hearing the
appeal, the Republic was not represented, an indication that they were not
contesting the Appeal.<o:p></o:p>The
grounds upon which an appellate court can interfere with the sentence given by
the court below was adequately discussed in the case of APALOOV THE REPUBLIC
(1975) 1 GLR 156, CA. The Court of Appeal held thus (holding 11):<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;The
principles upon which the court would act on an appeal against sentence were
that it would not interfere with a sentence on the mere ground that if members
of the court had been trying the appellant they might have passed a somewhat
different sentence.&nbsp; The court would interfere only when it was of opinion
that the sentence was manifestly excessive having regard to the circumstances
of the case, or that the sentence was wrong in principle.&nbsp; Kwashie v. The Republic [1971] 1 G.L.R 488 at pp. 493 and 494, C.A. considered.<o:p></o:p>Again,
in ASAAH alias Asi&nbsp; v THE REPUBLIC&nbsp; (1978) GLR 1,
Apatu-Plange&nbsp; Ag. J. made very useful
observations which this court also endorses. His Lord stated:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ...in
dealing with an appeal of this
nature the court has to find out whether there were any mitigating factors
which the trial magistrate took or failed to take into consideration. If
the record reveals that he took all the said mitigating factors into
consideration before imposing the sentence, then his discretion can be said to
have been properl</main>